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Dyson Heydon likely to make decision on royal commission role by Tuesday Dyson Heydon likely to make decision on royal commission role by Tuesday
(about 2 hours later)
Dyson Heydon will spend the weekend considering his future overseeing the royal commission into trade union governance and corruption, after a hearing in which three union representatives told him his position was untenable.Dyson Heydon will spend the weekend considering his future overseeing the royal commission into trade union governance and corruption, after a hearing in which three union representatives told him his position was untenable.
The former high court judge heard submissions for his withdrawal in Sydney on Friday, and indicated he was likely to announce his decision about the apprehension of bias claims next Tuesday.The former high court judge heard submissions for his withdrawal in Sydney on Friday, and indicated he was likely to announce his decision about the apprehension of bias claims next Tuesday.
Lawyers for the Australian Council of Trade Unions, and the CFMEU and the AWU unions, focused heavily on an email trail surrounding Heydon’s willingness to speak at a Liberal party fundraiser, the Sir Garfield Barwick lecture, arguing it undermined public confidence in his ability to be impartial in carrying out the commission’s work. Lawyers for the Australian Council of Trade Unions, and the CFMEU and the AWU, focused heavily on an email trail surrounding Heydon’s willingness to speak at a Liberal party fundraiser, the Sir Garfield Barwick lecture, arguing it undermined public confidence in his ability to be impartial in carrying out the commission’s work.
Related: Dyson Heydon considers commission future after union submissions – as it happenedRelated: Dyson Heydon considers commission future after union submissions – as it happened
The provision of electronic documents to lawyers acting for the CFMEU on Thursday sparked controversy during the hearing, with the ACTU claiming the commission had failed to furnish all documentation when hard copies were released at the start of the week.The provision of electronic documents to lawyers acting for the CFMEU on Thursday sparked controversy during the hearing, with the ACTU claiming the commission had failed to furnish all documentation when hard copies were released at the start of the week.
John Agius SC, acting for the CFMEU, also raised the suggestion during the hearing that a reasonable person might form the view that the originally released document had been altered or even “doctored” – a suggestion firmly rejected by counsel assisting the inquiry, Jeremy Stoljar SC.John Agius SC, acting for the CFMEU, also raised the suggestion during the hearing that a reasonable person might form the view that the originally released document had been altered or even “doctored” – a suggestion firmly rejected by counsel assisting the inquiry, Jeremy Stoljar SC.
Stoljar said solicitors for the CFMEU were given an electronic copy of all emails at 11.40am on Thursday at their request, but that material was not provided to ACTU and AWU representatives “by oversight of commission staff”.Stoljar said solicitors for the CFMEU were given an electronic copy of all emails at 11.40am on Thursday at their request, but that material was not provided to ACTU and AWU representatives “by oversight of commission staff”.
He said it was clear from the face of the hard-copy versions released on Monday that the invitation to the event was enclosed or attached, and there was no basis for the serious claim of doctoring.He said it was clear from the face of the hard-copy versions released on Monday that the invitation to the event was enclosed or attached, and there was no basis for the serious claim of doctoring.
But the ACTU said the evidence suggested Heydon had received the invitation twice, placing his position at the helm of the royal commission under further pressure.But the ACTU said the evidence suggested Heydon had received the invitation twice, placing his position at the helm of the royal commission under further pressure.
Related: Dyson Heydon will continue to lead royal commission, Josh Frydenberg saysRelated: Dyson Heydon will continue to lead royal commission, Josh Frydenberg says
The fate of the commission hangs in the balance because of an outcry from Labor and unions after revelations Heydon initially accepted an invitation to be the keynote speaker at the Sir Garfield Barwick event.The fate of the commission hangs in the balance because of an outcry from Labor and unions after revelations Heydon initially accepted an invitation to be the keynote speaker at the Sir Garfield Barwick event.
Heydon, who pulled out of the event last week, said on Monday that he had “overlooked” the Liberal party connection when he was contacted by the organiser in March 2015, and also overlooked that his agreement in 2014 to speak at the event had been conditional on the commission’s work having been completed.Heydon, who pulled out of the event last week, said on Monday that he had “overlooked” the Liberal party connection when he was contacted by the organiser in March 2015, and also overlooked that his agreement in 2014 to speak at the event had been conditional on the commission’s work having been completed.
Heydon maintained he had not read the attachments of a June 2015 email that contained an invitation and Liberal party donation information, but his “understanding at all times has been that the dinner was not to be a fundraiser”.Heydon maintained he had not read the attachments of a June 2015 email that contained an invitation and Liberal party donation information, but his “understanding at all times has been that the dinner was not to be a fundraiser”.
The CFMEU’s lawyers sought an electronic version of the 12 August email from the event organiser, Gregory Burton, to Heydon outlining final arrangements for the address, noting it was part of an email trail and the earlier messages were believed to include attachments.The CFMEU’s lawyers sought an electronic version of the 12 August email from the event organiser, Gregory Burton, to Heydon outlining final arrangements for the address, noting it was part of an email trail and the earlier messages were believed to include attachments.
Agius told the hearing a fair-minded person in possession of the 11.12am email “would now know that that email made it plain that the event involved the concept of a donation and that, together with the information that the event was a Liberal party event, would, in our respectful submission, give the fair-minded observer cause for concern that the information that was released on 17 August was accurate”.Agius told the hearing a fair-minded person in possession of the 11.12am email “would now know that that email made it plain that the event involved the concept of a donation and that, together with the information that the event was a Liberal party event, would, in our respectful submission, give the fair-minded observer cause for concern that the information that was released on 17 August was accurate”.
He said a person may have been concerned “that the information that was released was at best a partial disclosure, if not a disclosure of a doctored document which had been edited to remove the reference to state donation”.He said a person may have been concerned “that the information that was released was at best a partial disclosure, if not a disclosure of a doctored document which had been edited to remove the reference to state donation”.
Another lawyer assisting the commission, Sarah McNaughton SC, told Agius the email did not include the attachment line because it was part of a chain and the system meant that attachments in previous emails dropped off.Another lawyer assisting the commission, Sarah McNaughton SC, told Agius the email did not include the attachment line because it was part of a chain and the system meant that attachments in previous emails dropped off.
Robert Newlinds SC, for the ACTU, distanced himself from the doctoring claim, but said he was concerned that Heydon had originally wanted the union movement to present the arguments for disqualification on Monday.Robert Newlinds SC, for the ACTU, distanced himself from the doctoring claim, but said he was concerned that Heydon had originally wanted the union movement to present the arguments for disqualification on Monday.
Newlinds said an observer would be “horrified” and “most perturbed” by the release of additional documents.Newlinds said an observer would be “horrified” and “most perturbed” by the release of additional documents.
“Boy, you’ve got to be confident when you tell someone that they’ve got all the documents, and you were wrong when you told me that,” he told Heydon.“Boy, you’ve got to be confident when you tell someone that they’ve got all the documents, and you were wrong when you told me that,” he told Heydon.
Newlinds said the documents seemed to show Heydon had received the relevant invitation twice. The ACTU secretary, Dave Oliver, seized on this claim to call on the prime minister, Tony Abbott, to “shut this farce down” by ending the royal commission on Friday afternoon.Newlinds said the documents seemed to show Heydon had received the relevant invitation twice. The ACTU secretary, Dave Oliver, seized on this claim to call on the prime minister, Tony Abbott, to “shut this farce down” by ending the royal commission on Friday afternoon.
The ACTU, in its submission to the commission, cited a precedent from a previous case that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.The ACTU, in its submission to the commission, cited a precedent from a previous case that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
Newlinds said the commission’s final report, due in December, must have credibility if it was to serve any beneficial purpose. But a fair-minded observer “would be left in a state of doubt sufficient to think that you might not be able to bring an impartial mind to these highly sensitive matters”.Newlinds said the commission’s final report, due in December, must have credibility if it was to serve any beneficial purpose. But a fair-minded observer “would be left in a state of doubt sufficient to think that you might not be able to bring an impartial mind to these highly sensitive matters”.
At the end of the proceedings, Heydon said he would adjourn the hearing “to commence work on a consideration of this interesting, and in some respects complex, matter”. The AWU submission noted that the opposition leader, Bill Shorten, a former Victorian and national secretary of the union, had been questioned by the commission in July.
“Having regard to his current position, the political sensitivity of these investigations are self-evident, and they underscore the particular importance of the perceived political impartiality of the inquisitor,” the AWU’s lawyers wrote.
Herman Borenstein QC, for the AWU, dismissed the focus on whether the Sir Garfield Barwick address was a political fundraiser. Borenstein said that once Heydon accepted the invitation to speak at a Liberal party function in April 2014 “the damage was done then and there and nothing changed thereafter”.
Counsel assisting the commission did not take a position on the outcome on the recusal applications, but emphasised the difference between court proceedings and royal commissions.
Heydon said he would adjourn the hearing “to commence work on a consideration of this interesting, and in some respects complex, matter”.
Heydon said he hoped to complete that decision by Tuesday, but left the door open to changing the timeframe.Heydon said he hoped to complete that decision by Tuesday, but left the door open to changing the timeframe.
Late on Friday, the commission issued a statement announcing that a CFMEU official had been served with a notice to appear in the Brisbane Magistrates Court on 15 October over intimidation and false declaration allegations.
The police officers were attached to the trade union royal commission task force, the statement said.